It seems that client choice is following the path of so much else in the criminal legal system as it is threatened with being killed off in the proposed shake up of criminal legal aid.

Despite the fact we all believed this was protected in LASPO, it seems the minister allowed himself enough wriggle room and soon it will be like A&E, you simply get the first doctor to see you and no choice in the matter.

S.27 of LASPO says:

“(4) An individual who qualifies under this Part for representation for the purposes of criminal proceedings by virtue of a determination under section 16 may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).

(5) Where an individual exercises that right, representation by the selected representative or representatives is to be available under this Part for the purposes of the proceedings.”

All well and good, but the sting is in:

“(3) The Lord Chancellor’s duty under section 1(1) does not include a duty to secure that, where services are made available to an individual under this Part, they are made available by a person selected by the individual, subject to subsections (4) to (10).”

The Lord Chancellor and justice secretary, Chris Grayling, has made clear his views on client choice in chapter 4 of his consultation paper. “An approach that removed client choice entirely would…deliver the greatest level of certainty,” he says.

This is because: “If client choice were retained as now as a part of this model – both at the outset or allowing clients to switch providers at different stages of the process – this would introduce a level of uncertainty over the case volumes a provider would be allocated.” His one concession is to accept that there may be “exceptional circumstances in which clients might be permitted to change their allocated provider (either at the point of requesting advice or during a case)”

The MoJ impact study reinforces this approach. “Giving the provider greater certainty by restricting a client’s right to choose their provider at the point of request and to transfer to a new provider will have a positive impact on providers, enabling them to retain business throughout the life of a case.”

According to the ‘Law Gazette’, Grayling told a recent meeting of the barristers’ circuit leaders that abandoning client choice was designed to help new entities, such as the bar, to enter the market place. During the meeting he clearly tried to get the barristers on side, but issued the astonishing threat that “If the bar does not co-operate I may introduce PCT in the Crown court.” I thought the official line was that PCT was the most efficient and modern method to process the criminal legal system. Now it is clearly a method of punishing those who do not fall into line.

If Grayling’s meeting was an attempt to drive a wedge between solicitors and barristers it clearly failed. After he left the meeting the circuit leaders firmly agreed that they must act in unison and with CBA, liaising with solicitors and Law Society and organising any necessary publicity and media liaison. They will meet the justice minister again before the end of the consultation period.

This post was written by:

Mike Gribbin is a retired Civil Servant with wide experience, including the drafting and implementation of Parliamentary legislation and regulations. He is the editor of “Criminal Offences Handbook”, a uniquely comprehensive guide to more than one thousand ways to fall foul of UK criminal law. He is Editor of the Upper Case Legal Journal and has been writing blog posts for the past eight years.